SU ANNE OCKER v. JIMMY LEE ELLIS--Appeal from 36th District Court of Aransas County

   NUMBER 13-04-071-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

SU ANNE OCKER, Appellant,

v.

JIMMY LEE ELLIS, Appellee.

 On appeal from the 36th District Court

of Aransas County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Su Ann Ocker, contests the trial court=s determination that a 1979 divorce decree granting her a division of appellee=s retirement benefits did not include disability pay. She also appeals her denial of attorney=s fees and court costs. See Tex. R. Civ. P. 131. We affirm the judgment of the trial court.

I. Facts and Procedural History

Appellant and appellee, Jimmy Lee Ellis, were divorced in 1979. Their divorce decree included a specific division of appellee=s retirement benefits. Appellee later qualified for disability benefits through the Veteran=s Administration (VA). Appellee=s VA disability benefits offset payments from his retirement benefits. In 2003, appellee sought and received from the trial court a clarification that his disability pay did not fall under the divorce decree=s definition of retirement benefits. Appellant now contests this clarification in eleven issues on appeal, all of which ultimately turn on whether the trial court erred in finding the 1979 divorce decree did not intend retirement pay to include VA disability pay. If the trial court did err, as appellant claims, she further argues that the 2003 decree modified, not just clarified, the 1979 divorce decree in violation of res judicata. Finally, appellant seeks attorney=s fees and court costs.

II. Analysis

Appellant contends that the trial court contradicted itself by declaring the 1979 divorce decree a non-voidable judgment, then making a material modification by holding that appellee could deduct his VA disability compensation from his gross retirement pay before calculating appellant=s apportioned share.

When interpreting property divisions in divorce decrees, Texas courts follow an established procedure. Wilde v. Murchie, 949 S.W.2d 331, 333 (Tex. 1997). If the decree, when read as a whole, unambiguously describes the property's disposition, the court effectuates the order following the literal language used. Id. If the decree is ambiguous, however, the court must interpret the judgment by reviewing both the decree as a whole and the record to ascertain the property's disposition. Id. Even after expiration of its plenary jurisdiction, a trial court may clarify or enforce a divorce decree. See McGehee v. Epley, 661 S.W.2d 924, 926 (Tex. 1983). The courts may enter orders of Aclarification@ to enforce compliance with insufficiently specific divorce decrees. Tex. Fam. Code Ann. ' 9.008(b) (Vernon 2004). The courts, however, Amay not amend, modify, alter, or change the division of property@ set out in the decree. Id. ' 9.007(a). Any order that does so is unenforceable. Id. ' 9.007(b). Any attempt by a petitioner to get such an order modifying or altering divorce decrees is therefore an impermissible collateral attack and must be denied on grounds of res judicata. See Baxter v. Ruddle, 794 S.W.2d 761, 762-63 (Tex. 1990).

The parties= 1979 divorce decree states in relevant part the following:

. . . Respondent shall pay to Petitioner, as her interest in said [U.S. Navy] retirement benefits, an amount equal to one-half (1/2) of six and one-half (6 1/2) divided by the total number of years served for retirement purposes, multiplied by the monthly retirement benefit paid, if and when said benefit is paid, six and one-half (6 1/2) being the number of years that parties were married to each other and residents of the State of Texas.

The primary issue is whether the above paragraph contemplated VA disability income as a part of his retirement benefits. The divorce decree offers no definition of the term Aretirement benefits,@ nor is there any contemplation of Adisability benefits.@ A careful reading of appellant=s brief offers no explanation as to why appellee=s VA disability benefits should be included in the calculation of her portion of his retirement benefits. See Tex. R. App. P. 38.1(h).

Case law supports appellee=s assertion that VA disability income is not included in a retirement benefits calculation. Indeed, it has never been considered community property. See Ex parte Johnson, 591 S.W.2d 453, 455 56 (Tex. 1979) (AVeterans Administration benefits are not divisible or assignable. They are not property.@); see also In re Marriage of Reinauer, 946 S.W.2d 853, 857-58 (Tex. App.BAmarillo 1997, writ denied); Patrick v. Patrick, 693 S.W.2d 52, 54 n.1 (Tex. App.BFort Worth 1985, writ ref=d n.r.e.); Ramsey v. Ramsey, 474 S.W.2d 939, 940 41 (Tex. Civ. App.BEastland 1971, writ dism'd).

We conclude that the 1979 divorce decree did not contemplate, and could not legally contemplate, the inclusion of VA disability benefits in an apportionment of community property. The consequential defeasance of appellant=s share is irrelevant. See Ex parte Burson, 615 S.W.2d 192, 196 (Tex. 1981) (holding Burson could not be held in contempt for sheltering his disability income from alimony payments by electing to waive his Air Force disability, which was community property, in favor of VA disability, which was not).

Because the court=s modification of the relevant wording in the divorce decree merely clarified the decree by expressly excluding VA disability benefits, to which appellant never had a right, we find no merit in appellant=s claims of a res judicata violation. See Tex. Fam. Code Ann. ' 9.008(b) (Vernon 2004).

Given that appellant has failed to prevail on any substantive grounds for appeal, we decline to award appellant attorney=s fees and court costs. See Tex. R. Civ. P. 131, 141.

III. Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Memorandum Opinion delivered and filed

this 4th day of August, 2005.